and along with it the continuation of our liberal democracy. If you have any doubt, I strongly urge you to read Free to Search and Seize, an op ed in today's New York Times by David K. Shipler.
He begins by recounting a number of the things that have, despite the lessons we had in theory learned in the 1970s, limited the reach of the Fourth Amendment, actions by all three branches of government. He then offers these words, which I urge you to read carefully:
For over a decade now, the government has tried to make us more secure by chipping away at the one provision of the Bill of Rights that pivots on the word “secure” — the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.”
The founding fathers, who sought security from government, would probably reject today’s conventional wisdom that liberty and security are at odds, and that one must be sacrificed for the other. In their experience, the chief threat to individual security came from government itself, as in the house-to-house searches conducted by British customs officers under blanket “writs of assistance.” After the Boston lawyer James Otis Jr. eloquently challenged the writs in 1761, John Adams, who was present in the crowded courtroom, wrote of the audience’s rage, “Then and there the child independence was born.”
Please keep reading.
the chief threat to individual security came from government itself - those are words which should always give us caution.
Our Founders designed a system of limited government, with checks and balances. After the failure of government under the Articles of Confederation - which had few powers and no executive - the Constitutional Convention designed a form of government with an executive whose potential sufficiently scared some of the Founders that they would not support ratification without specific limitations upon the power of the government. The Fourth Amendment is a key part of such limitations, which explicitly protect the rights of individual PERSONS.
It is not as if governments at all levels have not abused our rights. I am of an age to remember the Red Squads in local police departments, and of the Army spying on Americans and creating massive files stored at Fort Holabird. In the 1970s this country said NO to such actions and moved to reestablish a proper balance between supposed security and liberty.
The arguments used by some for less restraint upon searches have been paralleled by those who argue for eliminating restrictions upon torture. Yet in neither case have we obtained information that is useful in a timely fashion to achieve the goals supposedly sought by such methods. There is no evidence of useful information obtained through torture either in fighting Al Qaeda or in the prosecution of our probably illegal war in Iraq. And as Shipler notes, referring to a study by The Breakthrough Institute, there are at most two cases that may have succeeded as a result of the enhanced search powers under the USA Patriot Act.
Those who insist upon such methods, be they torture or unrestricted search, apparently are not seeking actionable information. They may be seeking "information" to justify actions they have already decided to take, or means of dominating others to achieve personal, financial and/or political goals that seem to care little for the well-being of the nation as a liberal democracy or of "We the People of the United States."
The Fourth Amendment is quite specific. Those seeking to search had to appear in Court, offer by oath or affirmation a probable cause and be specific in the items or persons being sought. As Shipler notes,
The ingenious feature of this demand is that it makes criminal investigations more efficient and accurate, even as it preserves liberty. If that rule and others in the Bill of Rights are followed, the police waste less time chasing false leads, make fewer erroneous arrests and leave the community safer.
the police waste less time chasing false leads, make fewer erroneous arrests and leave the community safer
We have been living through administrations that increasingly argue that they can keep information from the Courts on the grounds of "state secrets" and from the Congress. The latter, when willing to fulfill their responsibilities, are suppose to act on behalf of "we the people" in whose names actions are supposedly being taken. The Courts should serve to ensure justice, to make sure that the other branches of government do not exceed the limitations intended to remain in place by the very Founders who established our form of government.
Absent the requirement for warrants in conformity with the Fourth Amendment, government becomes too unrestrained in its ability to wreak havoc upon the lives of those whose opinions or even presence may be an annoyance or worse.
Perhaps you may think my posing the ignoring of the requirements of the Fourth Amendment as a parallel to ignoring the restrictions upon torture as too extreme. I would argue that the Founders would disagree. Allow me to quote part of Justice Marshall's opinion in Marbury, which should once and for all have made clear that the Congress - and by implication the Executive - cannot waive Constitutional provisions:
... It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
If we continue to allow whittling away of explicit Constitutional protections, then we move into the territory that written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. And if these are absurd attempts, we no longer have a government of laws, those laws restricted by the authority of the Constitution established by "We the people." We have a government of those men in control of the instruments of government at any moment.
Georges Santayana once warned that those ignorant of history are doomed to repeat it. That came to mind when I read Shipler's penultimate paragraph:
American history is replete with assaults on liberties that first target foreigners, minorities and those on the political margins, then spread toward the mainstream. The 1917 Espionage Act, for example, was used to prosecute American labor leaders and other critics of the government, and the 1798 Alien Enemies Act was revived after Pearl Harbor to intern American citizens of Japanese ancestry. A similar process is taking place now, as the F.B.I. has begun using counterterrorism tools to search, infiltrate and investigate groups of American peace activists and labor leaders in the Midwest.
But perhaps those who are abusing our rights are not ignorant of history - they know for how long those previous abuses went unchecked. Perhaps it is that we as a people are ignorant. Certainly we do not teach much of this history. Few Americans are fully aware that the kinds of proposals in the name of security being proposed and implemented now have precedents in our past, precedents that did not make us safer, and greatly restricted our liberties.
Here I might note that for the past few decades we have had little emphasis on teaching our history honestly, of teaching about our government. After all, knowledge of either is not tested for to determine adequate yearly progress under No Child Left Behind, so it should not be surprising that the recent report of the National Assessment of Education Progress (NAEP - considered the nation's report card on schools) showed an abysmal level of civic knowledge.
But it is far worse than that. It is that we are moving in the direction of tyranny. As a nation we are frogs in pots in which the temperature is slowly being raised as our liberties are being boiled away.
Shipler makes that clear in his final paragraph. I strongly urge you take the words he offers - from Robert Jackson - and keep them before you every time someone argues the necessity of restricting liberty in the name of security. This is how it starts.
And now that final paragraph:
The Fourth Amendment is weaker than it was 50 years ago, and this should worry everyone. “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government,” Justice Robert H. Jackson, the former chief United States prosecutor at the Nuremberg trials, wrote in 1949. “Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.”